Disciplinary Counsel v. Scacchetti , 131 Ohio St. 3d 165 ( 2012 )

[Cite as Disciplinary Counsel v. Scacchetti, 131 Ohio St.3d 165, 2012-Ohio-223.]
DISCIPLINARY COUNSEL v. SCACCHETTI.
[Cite as Disciplinary Counsel v. Scacchetti,
131 Ohio St.3d 165, 2012-Ohio-223.]
Attorneys at law—Misconduct—Violations relating to client trust account—
Failure to cooperate in disciplinary investigation—Neglect of legal
matter—Indefinite suspension.
(No. 2011-1409—Submitted October 5, 2011—Decided January 26, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-043.
__________________
Per Curiam.
{¶ 1} Respondent, David John Scacchetti of Cincinnati, Ohio, Attorney
Registration No. 0014117, was admitted to the practice of law in Ohio in 1982. In
June 2007, we suspended Scacchetti for two years, with the final 18 months
stayed on conditions based upon his cocaine use and related criminal charges.
Disciplinary Counsel v. Scacchetti, 114 Ohio St.3d 36, 2007-Ohio-2713, 867
N.E.2d 830. We reinstated Scacchetti to the practice of law and placed him on
probation on March 20, 2008. Disciplinary Counsel v. Scacchetti, 117 Ohio St.3d
1216, 2008-Ohio-1489, 883 N.E.2d 1073.1 And on November 1, 2011, we
suspended his license for failure to comply with the registration requirements of
Gov.Bar R. VI for the 2011-2013 biennium. In re Attorney Registration
Suspension of Scacchetti, 130 Ohio St.3d 1423, 2011-Ohio-5627, 956 N.E.2d 310.
{¶ 2} On April 11, 2011, relator, Disciplinary Counsel, filed a complaint
charging Scacchetti with violations of the Ohio Rules of Professional Conduct,
1. As of the date of this opinion, Scacchetti has not applied for termination of his probation as
required by Gov.Bar R. V(9)(D).
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alleging that he had commingled personal and client funds, used his client trust
account as a personal account or law-office operating account, neglected a client
matter, and failed to respond in the ensuing disciplinary investigations. The
Board of Commissioners on Grievances and Discipline attempted to serve
Scacchetti with a copy of the complaint by certified mail at the address he had
registered with the Office of Attorney Registration, but the letter was returned
unclaimed. On May 9, 2011, the clerk of the Supreme Court of Ohio accepted
service on Scacchetti’s behalf in accordance with Gov.Bar R. V(11)(B), and
relator moved for default judgment pursuant to Gov.Bar R. V(6)(F) on June 23,
2011.
{¶ 3} The board referred the motion to a master commissioner, who
found that the materials relator offered in support of his default motion were
sufficient and that relator had proved each of the alleged violations of the Rules of
Professional Conduct by clear and convincing evidence. The master
commissioner, however, rejected relator’s recommended two-year suspension
from the practice of law in favor of an indefinite suspension. The board adopted
the master commissioner’s findings of fact and misconduct and his recommended
sanction.
Misconduct
{¶ 4} The essence of the board’s findings is as follows. With regard to
count one, relator received notice from Scacchetti’s bank that he had overdrawn
his client trust account on five separate occasions. In response to those notices,
relator sent letters of inquiry seeking Scacchetti’s explanation of the overdrafts.
Although Scacchetti submitted a partial response to one letter, spoke with
assistant disciplinary counsel by telephone, and requested and received an
extension of time to provide additional information, he did not provide any
additional information or respond to relator’s subsequent correspondence.
Scacchetti was subpoenaed to attend two depositions, but failed to appear.
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January Term, 2012
{¶ 5} The board also found that from May 2009 through November
2010, Scacchetti commingled personal and client funds in his client trust account,
used that account as if it were a personal account or law-office operating account,
and caused the account to be overdrawn on five separate occasions.
{¶ 6} With respect to count two, the board found that respondent
represented Mariscal Protasio Cortez on a felony-theft matter before the Hamilton
County Court of Common Pleas. Cortez entered a guilty plea to a first-degree-
misdemeanor theft charge and, as part of the plea agreement, provided Scacchetti
with $100 to pay restitution to the victim of the offense. Although Scacchetti
informed the presiding judge that he would make the payment and provide the
court with a copy of the receipt, he failed to do so. And, as in count one,
Scacchetti failed to respond to relator’s letters of inquiry.
{¶ 7} Based upon its factual findings, the board found that respondent’s
conduct with respect to count one violated Prof.Cond.R. 1.15(a) (requiring a
lawyer to hold funds of clients in an interest-bearing client trust account, separate
from the lawyer’s own property), 8.1(b) (prohibiting a lawyer from knowingly
failing to respond to a demand for information by a disciplinary authority during
an investigation), 8.4(d) (prohibiting a lawyer from engaging in conduct that is
prejudicial to the administration of justice), and 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice law)
and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a disciplinary
investigation).
{¶ 8} With respect to count two, the board found that respondent’s
conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable
diligence in representing a client), 1.15(d) (requiring a lawyer to promptly deliver
funds or other property that the client or third person is entitled to receive), 8.1(b),
8.4(d), and 8.4(h) and Gov.Bar R. (V)(4)(G).
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Sanction
{¶ 9} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 10} The board found that there are no mitigating factors present but
that Scacchetti’s prior disciplinary record, his pattern of misconduct, and his
failure to cooperate in the disciplinary process are aggravating factors in this case.
BCGD Proc.Reg. 10(B)(1)(a), (c), and (e). The board also found that on April 15,
2011, respondent pleaded guilty to a misdemeanor charge of possession of drug
paraphernalia and was sentenced to two years of community control, conditioned
upon his submission to random urine testing and participation in outpatient
treatment.
{¶ 11} Relator recommended that Scacchetti be suspended from the
practice of law, with reinstatement conditioned upon his successful completion of
a minimum two-year contract with the Ohio Lawyers Assistance Program
(“OLAP”) and any OLAP treatment recommendations, compliance with the terms
of his community control, and completion of continuing legal education relating
to client trust accounts.
{¶ 12} Having considered Scacchetti’s conduct, the relevant aggravating
factors, the absence of any mitigating factors, and the sanction imposed for
comparable conduct in Dayton Bar Assn. v. Wilson, 127 Ohio St.3d 10, 2010-
Ohio-4937, 935 N.E.2d 841 (imposing an indefinite suspension on an attorney
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January Term, 2012
who failed to maintain accurate records of the funds held in her client trust
account, failed to promptly deliver funds that a client was entitled to receive,
failed to provide diligent and competent legal representation to another client, and
failed to cooperate in the resulting disciplinary investigation), the board
recommends that we indefinitely suspend respondent from the practice of law.
{¶ 13} Clear and convincing evidence demonstrates that Scacchetti
neglected the legal matters of his client, failed to promptly deliver funds or other
property that a third party was entitled to receive, and failed to cooperate in the
ensuing disciplinary investigation.2 We have recognized that “[a] lawyer’s
neglect of legal matters and failure to cooperate in the ensuing disciplinary
investigation generally warrant an indefinite suspension from the practice of law
in Ohio.” Akron Bar Assn. v. Goodlet, 115 Ohio St.3d 7, 2007-Ohio-4271, 873
N.E.2d 815, ¶ 20.
{¶ 14} Therefore, we agree that the indefinite suspension recommended
by the board is the appropriate sanction in this case. In light of Scacchetti’s
previous drug-related suspension and his recent conviction for possession of
illegal drug paraphernalia, we also agree that to protect the public and maintain
2. Gov.Bar R. V(6)(F)(1)(b) provides that a motion for default in a disciplinary proceeding shall
contain “[s]worn or certified documentary prima facie evidence in support of the allegations
made.” Relator’s exhibits 3 through 57 include photocopies of letters relator purportedly sent to
Scacchetti, bank records, photocopies of checks deposited into and drafted on Scacchetti’s client
trust account, a letter purportedly sent to relator by Scacchetti, a transcript of an attempted
deposition, two subpoenas duces tecum purportedly served upon Scacchetti, and overdraft notices
purportedly sent to relator by Scacchetti’s bank. Although relator has also submitted the affidavit
of an assistant disciplinary counsel detailing relator’s efforts to communicate with Scacchetti, that
affidavit does not state that the documents submitted with the affidavit are true copies or
reproductions of the originals sent to or received from Scacchetti. Because the record contains no
sworn or certified evidence relating to Scacchetti’s handling of his client trust account, we cannot
adopt the board’s findings of fact or misconduct with regard to his alleged violation of
Prof.Cond.R. 1.15(a). See Cincinnati Bar Assn. v. Newman, 124 Ohio St.3d 505, 2010-Ohio-928,
924 N.E.2d 359, ¶ 8-9. Based on the evidence supporting the other violations, however, the lack
of certified evidence on this violation does not alter the outcome of this case.
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the integrity of the legal profession, any future reinstatement will be conditioned
upon his entering into a minimum two-year OLAP contract and compliance with
all OLAP treatment recommendations, compliance with the conditions of his
community control, and completion of at least 12 hours of continuing legal
education related to law-practice management.
{¶ 15} Therefore, we indefinitely suspend David John Scacchetti from the
practice of law in Ohio. Any future reinstatement will be conditioned upon
Scacchetti’s submission of proof that he has entered into a minimum two-year
OLAP contract, is in compliance with all OLAP treatment recommendations, is in
compliance with the conditions of his community control, and has completed at
least 12 hours of continuing legal education related to law-practice management.
Costs are taxed to Scacchetti.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
______________________
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